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US shifts deportation policy; non-criminal cases in question

Two years ago, Nestor David Soto Flores was locked up in the Ramsey County jail, one of five jails that house immigrant detainees in Minnesota.

Back then, Soto was a 23-year-old college student studying graphic design. Like the majority of people deported from the Upper Midwest that year, Soto had no criminal record. After graduating from Farmington High School, he worked as an interpreter.

Federal Immigration and Customs Enforcement agents took Soto and his 27-year-old brother Jorge at the family's home in Burnsville. Their father had been deported and agents came for the rest of the family.

Although the family had crossed the U.S.-Mexico border when the brothers were 6 and 10, their request for asylum was denied and the government sent a deportation letter to a California address. The family was living in Minnesota at the time and said they never received it.

The two brothers spent 45 days in jail before their mother, a Mary Kay saleswoman, was able to borrow $12,000 from family in Mexico to bail them out.

Their chances of staying in the United States may have improved, now that the Department of Homeland Security has begun reviewing cases to speed up deportation of illegal immigrants who are criminals while also clearing the backlog of cases of people in the country illegally who are not criminals.

The year the Soto brothers were picked up, the United States deported a record 392,000 people. When the Sotos hired attorney Mary Baquero to fight their case, she told them only 12 percent of people who fight deportation win. An immigration judge set their court date for January of 2012.

But things can happen during the long wait. In late, 2010, Congress took up the DREAM Act, which would have granted undocumented college students like Soto a path to citizenship.

Soto, who crossed the border as a child, completed high school, started college and had a clean record, would have qualified. Although the measure passed the Senate, the House voted it down.

During the summer, the Obama administration announced it is refocusing immigration efforts on deporting criminals and recent border-crossers.

The Department of Homeland Security also reaffirmed something called "prosecutorial discretion" — meaning prosecutors could weigh factors like education, work history, a clean criminal record and community ties in determining which cases to take on.

The approach makes sense because prosecutors often make such decisions, said Michele Garnett McKenzie, director of advocacy at the Advocates for Human Rights, a group that represents detained immigrants.

"Historically, immigration officials really have not approached their job in that same way," she said. "They really look at every case that comes before them.

"This was an attempt to re-iterate to all the prosecutors in the immigration system that indeed, they do have some ability to weigh merits of cases and look at them [and] whether it should be pursued."

Critics decried the move as a back-door amnesty.

Another prong of the Obama administration's strategy was to put more resources into finding and deporting unauthorized immigrants who are committing crimes.

In Minnesota, these prosecutions are handled by the U.S. Attorney's office. Spokesperson Jeanne Cooney said her office works with federal, state and local law enforcement to find and prosecute drug traffickers and others involved in serious crimes who are in the country illegally.

"Our prosecutions have jumped dramatically over the last couple of years," Cooney said. "We're now seeing on average about five cases initiated against criminal aliens every month, where just two years ago, we might have seen five to 10 cases a year."

This year, for the first time, federal authorities deported more criminal offenders than others from the Upper Midwest. About 60 percent of the people deported have criminal records.

Immigration attorneys say they were initially encouraged the Obama administration memo could help the other 40 percent who have not been charged with criminal offenses. But immigrant advocates say they haven't seen any changes yet.

In part, Baquero said, that's because people enter the justice system all the time for things like minor traffic stops.

"I think they're stopped without reason," she said. "We announce it on our radio. You have a right to know why they stop you. They never get told why they're stopped. To me it looks like a lot of racial profiling — and very much involved in the immigration process if it's an officer or somebody who stops them. I don't see it getting better yet."

Baquero heads to court with the Soto family in late January and said it's not clear if her clients will benefit from the recent changes. Even if David Soto's deportation is deferred, it still leaves him without legal status.

Soto, now 25, has to stay in the family's Burnsville apartment every Thursday in case the electronic monitoring company calls or pays a visit. It requires time off work from his new job at a social service agency that serves the Latino community in St. Paul. He can legally work while his case is pending, but his future remains uncertain:

"I really pray that it all goes well, but then again, you know whatever happens, happens you know," he said. "So I guess we're just trying to buy ourselves some time just to be able to work and keep proving that we're still lawful citizens — or lawful people that live here. Not citizens, because obviously that's the whole problem."